NM doc appeals suspension over medical marijuana

SANTA FE, N.M. (AP) — In the six years since New Mexico legalized medical marijuana, Dr. Nicholas Nardacci has cleared more than 1,000 patients to use it — a tenth of all the patients certified across the state in that period — for conditions ranging from cancer to multiple sclerosis to post-traumatic stress disorder.

He even uses it himself to treat chronic back pain.

But now the New Mexico Medical Board has suspended Nardacci’s license, claiming among other violations that he certified patients without proper documentation and that he examined and treated patients while under the influence of marijuana himself.

Nardacci is the first practitioner to be sanctioned by the board on allegations of misusing the state’s 2007 medical cannabis law, in a case that could represent one of the first tests of the law’s limits. Another practitioner who received a notice of contemplated action entered into a settlement agreement with the board.

Nardacci, who is appealing the board’s decision, claims the case against him is not supported by the board’s own investigation and is rife with conflicts of interest. He also asserts the campaign against him is really an effort by the board to show that New Mexico has tight oversight over its medical cannabis program so the U.S. Drug Enforcement Agency won’t seek to enforce federal drug laws against patients in New Mexico. While using cannabis is allowed for certified patients in the state, it is still a controlled substance under federal law.

“It’s a very thin case,” Nardacci said. “But they needed a target to put in the paper and say, ‘We are doing a good job; we are tough with our program.’ So they got me. They rolled me under the bus to make an example of somebody so they can show the program is tight.

“I’m ruined because of this,” he added. “With this on my record, I can’t work at a popcorn stand.”

A board spokeswoman referred questions to the board’s director, who could not be reached for comment.

According to the Aug. 20 complaint, Nardacci is accused of failing to report a DEA investigation of his office; of practicing medicine while being impaired; and certifying for medical cannabis individuals with whom he did not have a patient relationship.

Paul Livingston, an attorney for Nardacci, said the last allegation has implications for all patients in light of the board’s efforts to tighten oversight of physicians who work with medical cannabis.

A public hearing on proposed new rules aimed at clarifying the role of medical providers who certify patients for the cannabis program was postponed last month by the board and has not been rescheduled.

The proposed rules drew criticism from medical marijuana advocates, who said the board seemed to be overstepping its authority. Critics also called some of the regulations “oppressive” and said the rules were not intended by state law.

One rule, for instance, would require medical practitioners to consult with a patient’s primary care practitioner, and another would require the names of patients who are certified for medical marijuana to be listed on a controlled-substances database.

Doctors do not prescribe medical cannabis but certify that a patient has one or more of the conditions that qualify for the treatment. That paperwork then goes to the state Department of Health, which issues final approval and an enrollment card into the medical cannabis program. Patients then must obtain the cannabis from a licensed supplier, not a doctor or pharmacist. Statewide, there are just under 10,000 patients in the program.

Nardacci noted that in his six years of certifying patients for the program, he never received any indication that the Health Department had concerns about the way he was performing certifications.

Livingston said the board first turned its attention to Nardacci after a security guard, who claimed Nardacci owed him money, reported that Nardacci had discharged a firearm at his place of business.

Nardacci said he did fire blanks from a shotgun into the ground one time, when a former girlfriend’s stepfather came to his office and behaved aggressively. Nardacci had hired the guard to provide security after the incident, according to the court file.

Livingston also noted that one of the state’s main witnesses against Nardacci, Dr. Steven Rosenberg, is also one of Nardacci’s biggest competitors in certifying patients for medical marijuana and was recently hired as the medical director of the Medical Cannabis Program.

Rosenberg, who estimates he’s certified about 2,500 patients himself, said Tuesday he doesn’t feel he had a conflict of interest in testifying in the case.

“I never considered him to be a competitor,” Rosenberg said, adding that Nardacci sometimes even referred patients to Rosenberg because patients who seek certification based on a diagnosis of chronic pain need two signatures on their forms.

With regards to the DEA probe, Nardacci admits his office was inspected and that he was ordered to correct some paperwork deficiencies. But he said the incident took place 10 years ago and seemed more like a routine inspection of his office than an investigation, which is why he didn’t list it on the form for a medical license renewal.

Some of the allegations against Nardacci center on the issue of whether his judgment was clouded by his own use of medical marijuana.

At the request of the Medical Board, Nardacci underwent a neuropsychological evaluation. The examination concluded Nardacci had some memory, attention and concentration scores that “were lower than what would generally be expected for a physician,” and that he might have tried to “fake good” to “make himself look better than he actually might have been.”

However, the neuropsychologist who conducted the evaluation wrote in his report that Nardacci was not affected “to the degree that would preclude (him) from continuing to practice medicine.”

According to the hearing officer’s report, Rosenberg stated that after reviewing a portion of Nardacci’s records, he believed the records reflected “errors in judgment by (Nardacci) and do not show an understanding of basic medicine or how portions of the medical records relate to the certification of patients for to the Medical Cannabis Program.”

However, the report also notes, “Based on the records he reviewed, Dr. Rosenberg did not see any demonstration of actual harm to a patient as a consequence of the patient’s certification for the use of medical cannabis.”

The board has suspended Nardacci’s license and ordered that he successfully complete a competency evaluation at the Center for Personalized Education for Physicians, or a comparable program approved by the board, before he can petition to have his license reinstated at the discretion of the board.

The board’s order does say he can obtain a limited license, which would allow him to practice under a supervising physician.

Nardacci also has been ordered to pay the Medical Board’s legal fees in the case, which total $9,772.